EXHIBIT (10(ee)
ESCROW AGREEMENT
----------------
THIS ESCROW AGREEMENT (this "Agreement"), dated as of January 31,
1996 among Aquarion Company, a Delaware corporation (in such capacity,
"Aquarion"), Aquarion Company, as Escrow Agent (in such capacity, the
"Escrow Agent"), certain individuals and entities listed on Schedule 1
attached hereto (each, a "Seller" and together, the "Sellers") Xxxxxx X.
Xxxxxxx and Xxxxxx X. Xxxxxxx as Representatives of the Sellers pursuant
to the Shareholders' Representative Agreement dated as of December 7,
1990 (the "Representative Agreement") by and among the Shareholders (as
defined therein) and Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx as
Representatives.
RECITALS
A. Pursuant to an Amended and Restated Stock Purchase Agreement
dated as of December 7, 1990, as amended on September 12, 1991 (the
"Stock Purchase Agreement"), Aquarion purchased from the Sellers the
issued and outstanding capital stock of SRK Holding Inc., a Connecticut
corporation ("SRK"), not then held by Aquarion.
B. Aquarion and the Sellers have agreed to settle all claims and
liabilities among themselves in connection with the Stock Purchase
Agreement and any transactions directly or indirectly related thereto or
any other documents in connection therewith (the "Claims").
C. Pursuant to such settlement, Aquarion has agreed to deposit
into escrow with the Escrow Agent Six Hundred Thousand and 00/100
Dollars ($600,000.00) (the "Initial Escrow Amount") to be payable to the
Sellers in accordance with the provisions of this Agreement, and the
Sellers have agreed to deposit into escrow with the Escrow Agent
releases from as many of the Sellers as can be reasonably found and in
no instance less than 90% of the Sellers, such releases to be in the
forms attached hereto (with a separate form for the Representatives) as
Exhibits A-1 and A-2 (the "Releases"), which Releases release Aquarion
--------------------
from the Claims.
D. The parties have entered into this Agreement in order to set
forth the conditions upon which, and the manner in which the Escrow
Agent shall disburse funds and the Releases from the Escrow Account (as
defined herein).
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and covenants herein contained, the parties, intending to be
legally bound, agree as follows:
1. Escrow Account; Escrow Agent.
----------------------------
(a) Appointment of Escrow Agent. Aquarion and the Sellers hereby
---------------------------
appoint Aquarion as Escrow Agent, and the Escrow Agent hereby accepts
appointment, as escrow agent, under the terms and conditions of this
Agreement.
(b) Establishment of Escrow Account. Contemporaneously with the
-------------------------------
execution of this Agreement and the deposit with the Escrow Agent of
Releases duly executed by at least 90% of the Sellers as described above
(the "Escrow Date"), the Escrow Agent shall establish an escrow account
(the "Escrow Account") at its office located at 000 Xxxx Xxxxxx,
Xxxxxxxxxx, XX 00000-0000. All funds accepted by the Escrow Agent
pursuant to this Agreement shall be held for the exclusive benefit of
the Sellers. All such funds shall be held in the Escrow Account until
disbursed or paid in accordance with the terms hereof. The Escrow
Account and the funds held therein held by the Escrow Agent shall be
under the sole dominion and control of the Escrow Agent for the benefit
of the Sellers.
(c) Delivery of Funds and Releases. On the Escrow Date, Aquarion
------------------------------
shall deliver the Initial Escrow Amount to the Escrow Agent for deposit
into the Escrow Account against the Escrow Agent's written
acknowledgment and receipt of the Initial Escrow Amount. Xxxxxxx X.
Xxxxxxx and Xxxxxx X. Xxxxxxx (the "Representatives") shall deliver the
Releases to the Escrow Agent for deposit into the Escrow Account against
the Escrow Agent's written acknowledgment and receipt of the Releases.
(d) Interest Rate Applicable to Funds in Escrow Account. Funds
---------------------------------------------------
deposited in the Escrow Account shall be deemed to accrue interest at an
annual rate of six percent (6%), (the "Interest Rate"), beginning on
October 1, 1995.
(e) Limitation on Escrow Agent's Responsibilities. The Escrow
---------------------------------------------
Agent's sole responsibilities under this Agreement shall be (1) to
retain possession of any funds in the Escrow Account, (2) to retain
possession of the Releases, and (3) to disburse such funds and release
the Releases in accordance with the provisions of this Agreement.
(f) Escrow Account Statement. On each Payment Date (as defined
------------------------
herein), the Escrow Agent shall deliver to Aquarion and the Sellers a
statement setting forth with reasonable particularity the balance of
funds then in the Escrow Account ("Escrow Account Statement") and the
calculation of the disbursement on such Payment Date.
2. Disbursements.
-------------
(a) Disbursements of Available Funds. Without any further action
--------------------------------
required by any party, the Escrow Agent shall make a disbursement to the
Sellers from the Escrow Account on January 2, 1996, April 2, 1996 and
October 1, 1996 (each a "Payment Date" and together, the "Payment
Dates"). The disbursements shall consist of 25% of the Available Funds
(as defined herein) on January 2, 1996; 33% of the Available Funds on
April 1, 1996; and the balance of the Available Funds on October 1,
1996. No disbursement shall be made unless and until all conditions set
forth in Section 1 with respect to the establishment of the Escrow
Account shall have been fulfilled. The Escrow Agent shall make each
disbursement in accordance with the written instructions from the
Representatives, which instructions shall specify in detail the manner
in which any such disbursement will be distributed by the
Representatives; provided, however, that no disbursement shall be made
to the Representatives for or on behalf of any of the Sellers unless and
until said Sellers have duly executed this Escrow Agreement and the
Release and shall have delivered same to the Escrow Agent. In the event
that funds remain in the Escrow Account after January 1, 1997 because of
the failure of one or more Sellers to properly execute this Escrow
Agreement and the Release, all such funds shall thereupon be paid over
to Aquarion, and the Escrow Account and this Escrow Agreement shall
thereupon be terminated.
"Available Funds" on any Payment Date shall mean (1) the sum of (A)
the Initial Escrow Amount and (B) interest accrued to such Payment Date
on the funds in the Escrow Account at the Interest Rate, plus, to the
extent received by the Escrow Agent prior to such Payment Date, (2)(A)
any of the accounts receivable set forth on Schedule 2 hereto that are
actually collected and received by Aquarion, and (B) any funds received
by Aquarion from the Tax Department of the State of Connecticut in
connection with the sales tax audit of Davco, less, to the extent any
new claims are made prior to such Payment Date, (3) any claims, against
SRK or Aquarion directly or indirectly arising out of the transactions
contemplated by the Stock Purchase Agreement, and less (4) the aggregate
disbursements previously made pursuant to this Agreement.
Aquarion and the Sellers agree that (i) (A) Aquarion shall give
notice to the Representatives of the receipt by Aquarion of any funds
which Aquarion believes in good faith should be paid by Aquarion into
the Escrow Account; (B) the Representatives, on behalf of the Sellers,
shall give notice to Aquarion of the amount and character of any funds
which the Representatives in good faith believe should be paid by
Aquarion into the Escrow Account, and (C) Aquarion shall not pay such
amounts into the Escrow Account unless the payment of such funds is
approved by Aquarion, which approval shall not be unreasonably withheld;
and (ii) (A) Aquarion shall give notice to the Representatives of the
amount and character of any claims against the funds in the Escrow
Account which Aquarion in good faith believes should be paid
therefrom, and (B) the Escrow Agent shall not make any disbursement in
payment of said claims until said claims are approved by the Representatives
on behalf of the Sellers, which approval shall not be unreasonably
withheld; provided, however, that the Escrow Agent shall not disburse
-----------------
any amounts on any Payment Date (1) which are proposed by its
Representatives to be paid into the Escrow Account but have not then
been approved by Aquarion (and no such amounts shall be considered
Available Funds under this Agreement), or (2) which are proposed by
Aquarion to be paid out of the Escrow Account but have not then been
approved by the Representatives.
(b) Disbursement of Releases. The Escrow Agent shall disburse the
------------------------
Releases to Aquarion from the Escrow Account at the time of final
payment from the Escrow Account to the Sellers.
3. Limitation on Rights and Remedies. Each of the parties hereto
---------------------------------
agrees that this Escrow Agreement sets forth in full the complete terms
of the Settlement among the parties of all matters relating to SRK and
the Stock Purchase Agreement and all transactions resulting therefrom
and contemplated thereby, and that all parties shall hereafter look
solely to, and be limited by, the terms of the Escrow Agreement with
respect to all issues, matters, rights and remedies in any manner
heretofore or hereafter arising with respect to any and all such matters
relating to SRK and the Stock Purchase Agreement.
4. Escrow Agent.
-----------
(a) Limitation of the Escrow Agent's Liability; Responsibilities
------------------------------------------------------------
of the Escrow Agent. The Escrow Agent shall be entitled to rely upon
-------------------
any judicial order or judgment, upon any written opinion of counsel or
upon any certification, instruction, notice, or other writing delivered
to it by Aquarion or the Representatives in compliance with the
provisions of this Agreement without being required to determine the
authenticity or the correctness of any fact stated therein or the
propriety or validity of service thereof. The Escrow Agent may act in
reliance upon any instrument comporting with the provisions of this
Agreement or signature believed by it to be genuine and may assume that
any person purporting to give notice or receipt or advice or make any
statement or execute any document in connection with the provisions
hereof has been duly authorized to do so.
At any time the Escrow Agent may request in writing an instruction
in writing from Aquarion and the Representatives, on behalf of the
Sellers, and may at its own option include in such request the course of
action it proposes to take and the date on which it proposes to act,
regarding any matter arising in connection with its duties and
obligations hereunder; provided, however, that the Escrow Agent shall
state in such request that it believes in good faith that such proposed
course of action is consistent with another identified provision of this
Agreement.
The Escrow Agent may act pursuant to the written advice of counsel
chosen by it with respect to any matter relating to this Agreement and
shall not be liable for any action taken or omitted in accordance with
such advice.
The Escrow Agent shall not be called upon to advise any party as to
taking or refraining from taking any action with respect to, any funds
or the Releases deposited hereunder.
5. Instructions to Escrow Agent. Aquarion and the Sellers hereby
----------------------------
irrevocably instruct the Escrow Agent to, and the Escrow Agent shall (a)
(1) maintain sole dominion and control over funds and the Releases in
the Escrow Account for the benefit of Aquarion and the Sellers to the
extent specifically required herein, and (2) maintain the Escrow Account
free and clear of all liens, security interests, safekeeping or other
charges, demands and claims against the Escrow Agent of any nature now
or hereafter existing in favor of anyone other than the rights of
Aquarion and the Sellers under this Agreement.
6. Termination. This Agreement shall terminate automatically ten
-----------
(10) days following disbursement of the Releases and of all funds
remaining in the Escrow Account unless sooner terminated by agreement of
the parties hereto (in accordance with the terms hereof); provided,
however, that until such tenth day, Aquarion shall cause this Agreement
(or any permitted successor agreement) to remain in effect and shall
cause there to be an escrow agent acting hereunder (or under any such
permitted successor agreement).
7. Consent of the Sellers. Each of the Sellers, by executing
----------------------
this Agreement, authorizes the Representatives to act on behalf of said
Seller in accordance with the provisions of this Agreement and confirms
that the Representatives are authorized under the Representative
Agreement to effect the distributions to the Seller from the Escrow
Account, all in the manner set forth herein and in the Representative
Agreement.
8. Indemnification. The Representatives each represent, warrant
---------------
and agree that (i) he is duly authorized under the Representative
Agreement to act on behalf of each of the Sellers with respect to all
matters directly or indirectly relating to the Stock Purchase Agreement
and the Escrow Agreement, including without limitation all matters
relating to the timing and method of the disbursement and distributions
of funds to Sellers from the Escrow Account, (ii) he will effect
distributions from the Escrow Account only in the manner specified
herein and only in compliance with the requirements of the
Representative Agreement. Each of the Representatives agrees, jointly
and not severally, to indemnify and hold harmless Aquarion from and
against all losses, claims, damages, liabilities and expenses (including
attorney s fees and expenses) to which Aquarion may become subject
insofar as they arise out of or are based upon actions taken by
either of the Representatives with respect to this Escrow Agreement,
the Escrow Account or any amounts deposited by Aquarion in the Escrow
Account.
9. Miscellaneous.
-------------
(a) Waiver. Any party hereto may specifically waive any breach of
this Agreement by any other party, but no such waiver shall be deemed to
have been given unless such waiver is in writing, signed by the waiving
party and specifically designating the breach waived, nor shall any such
waiver constitute a continuing waiver of similar or other breaches.
(b) Invalidity. If for any reason whatsoever any one or more of
----------
the provisions of this Agreement shall be held or deemed to be
inoperative, unenforceable or invalid in a particular case or in all
cases, such circumstances shall not have the effect of rendering any of
the other provisions of this Agreement inoperative, unenforceable or
invalid, and the inoperative, unenforceable or invalid provision shall
be construed as if it were written so as to effectuate, to the maximum
extent possible, the parties' intent.
(c) Assignment. This Agreement is personal to the parties hereto,
----------
and the rights and duties of any party hereunder shall not be assignable
except with the prior written consent of the other parties.
Notwithstanding the foregoing, this Agreement shall inure to and be
binding upon the parties and their successors and permitted assigns.
(d) Benefit. The parties hereto and their successors and
-------
permitted assigns, but no others, shall be bound hereby and entitled to
the benefits hereof; provided, however, that the Sellers and their
permitted assigns shall be entitled to the benefits hereof and to
enforce this Agreement.
(e) Entire Agreement; Amendments. This Agreement contains the
----------------------------
entire agreement among the parties with respect to the subject matter
hereof and supersedes any and all prior agreements, understandings and
commitments, whether oral or written including without limitation the
Stock Purchase Agreement. This Agreement may be amended only in a
writing signed by the Representatives and by Aquarion.
(f) Notices. All notices and other communications required or
-------
permitted to be given or made under this Agreement shall be in writing
and shall be deemed to have been duly given and received, regardless of
when and whether received, either: (1) on the day of hand delivery; (2)
three business days following the day sent, when sent by United States
certified mail, postage and certification fee prepaid, return receipt
requested, addressed as set forth below; (3) when transmitted by
telecopy with verbal confirmation of receipt by the telecopy operator to the
telecopy number set forth below; or (4) one business day following
the day timely delivered to a next-day air courier addressed as set
forth below:
To Escrow Agent:
Aquarion Company
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000-0000
Attn: Executive Vice President - Finance
Telecopy: 000-000-0000
Telephone: 000-000-0000
To Aquarion:
Aquarion Company
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000-0000
Attn: Executive Vice President - Finance
Telecopy: 000-000-0000
Telephone: 000-000-0000
To the Representatives on behalf of the Sellers:
Xx. Xxxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: 000-000-0000
Telephone: 000-000-0000
and to:
Xx. Xxxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telephone: 000-000-0000
or at such other address as the specified entity most recently may have
designated in writing in accordance with this Section.
(h) Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) Captions. Captions in this Agreement are for convenience only
--------
and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
(j) Choice of Law. The existence, validity, construction,
-------------
operation and effect of any and all terms and provisions of this
Agreement shall be determined in accordance with and governed by the
laws of the State of Connecticut, without regard to principles of
conflicts of laws. The parties to this Agreement hereby agree that
jurisdiction over such parties and over the subject matter of any action
or proceeding arising under this Agreement may be exercised by a
competent Court of the State of Connecticut, or by a United States
Court, sitting in Connecticut. Aquarion and the Sellers hereby submit
to the personal jurisdiction of such courts, hereby waive personal
service of process upon them and consent that any such service of
process may be made by certified or registered mail, return-receipt
requested, directed to Aquarion or the Representatives, on behalf of the
Sellers, at the address last specified for notices hereunder, and
service so made shall be deemed completed five (5) days after the same
shall have been so mailed, and hereby waive the right to a trial by jury
in any action or proceeding with the Escrow Agent. All actions and
proceedings brought by Aquarion or the Sellers against the Escrow Agent
relating to or arising from, directly or indirectly, this Agreement
shall be litigated only in courts within the State of Connecticut.
(k) Aquarion hereby represents and warrants that this Agreement
has been duly authorized, executed and delivered on its behalf and
constitutes the legal, valid and binding obligation of Aquarion. The
execution, delivery and performance of this Agreement by Aquarion does
not violate any applicable law or regulation to which Aquarion is
subject and does not require the consent of any governmental or other
regulatory body to which Aquarion is subject, except for such consents
and approvals as have been obtained and are in full force and effect.
(l) Each of the Sellers hereby represents and warrants that this
Agreement has been duly authorized, executed and delivered on its behalf
and constitutes its legal, valid and binding obligation.
IN WITNESS WHEREOF, the parties have executed and delivered this
Escrow Agreement as of the day first above written.
AQUARION COMPANY, as Escrow Agent
By:____________________________
Name:
Title:
AQUARION COMPANY
By:____________________________
Name:
Title:
_______________________________
Xxxxxxx X. Xxxxxxx, as
Representative and as a Seller
_______________________________
Xxxxxx X. Xxxxxxx
_______________________________
Xxxxxx X. Xxxxxxx, Xx.
_______________________________
Xxxxxx X. Xxxxxxx
_______________________________
Xxxxx Xxxxx
_______________________________
Xxxx Xxxx
_______________________________
Xxxxxx Xxxxx
CAMP & ASSOCIATES, INC.
By:____________________________
Name:
Title:
_______________________________
Xxxxxx Xxxx
_______________________________
Xxxxxx Xxxxx
_______________________________
Xxxxx Xxxxxx
_______________________________
Xxxxx Xxxxxxx
_______________________________
Xxxxx Xxxxx
_______________________________
Xxxxxx Xxxxxx
_______________________________
Xxxxxx Meena
_______________________________
Xxxxxxx Xxxxx
_______________________________
Xxxxxx Xxx
_______________________________
Xxxxxxxx Xxxxxxx
_______________________________
Xxxxxxx Xxxxxxxxx
_______________________________
Xxxxx Xxxxxx
_______________________________
Xxxxxxx Xxxxxx
_______________________________
Xxxxxxx Xxxxxxx
_______________________________
Xxxxx X. Xxxxxx
_______________________________
Xxxxx X. Xxxx, Xx.
_______________________________
Xxxx Xxxxxxxx
_______________________________
Xxxxxxx X. Xxxx
_______________________________
Xxxxx X. Xxxxx
_______________________________
Xxxxxxx Xxxxxx
_______________________________
Xxxx X. Xxxxxxx
_______________________________
Xxxxx X. Xxxx
_______________________________
Xxxxxxx X. Xxxxxx
_______________________________
Xxxxxx Xxxxxxxx
_______________________________
Xxxxxxx Xxxxxx
_______________________________
Xxxx Xxxxxxxx
_______________________________
Xxxxxxx Xxxxxxx
_______________________________
Xxxxxxx Xxxxxxx
_______________________________
Xxxx Xxxxxxxx
_______________________________
Xxxxxx Xxxxxxx
_______________________________
Xxx Xxxxxxxx
_______________________________
Xxxxxxx Xxxxxxx
_______________________________
Xxxxxx X. Xxxxxx
_______________________________
Xxxxxxx X. Xxxxxx
_______________________________
Xxxxxxx X. Xxxxxx
_______________________________
Xxx Xxxxxx
SCHEDULE 1
FORMER SHAREHOLDERS OF SRK (OTHER THAN AQUARION)
No. of Shares
-------------
Xxxxxxx X. Xxxxxxx 456,714
Xxxxxxx Xxxxxxxxx 20,461
Xxxxxxx X. Xxxxxx 8,956
Xxxxxx Xxx 8,956
Xxxxx Xxxxxxx 8,956
Xxxxxx Xxxx 8,956
Xxxxx Xxxxx 4,478
Xxxxx Xxxxx 2,686
Xxxxxxxx Xxxxxxx 1,791
Xxxxxx Xxxxx 1,344
Xxxx Xxxxxxxx 9,844
Xxxxxxx Xxxxxxx 895
Xxxxxxx X. Xxxxxx 9,896
Xxxxx X. Xxxxxx 34,926
Xxxxxx Xxxxx 1,000
Xxxxx Xxxxxx 2,000
Xxxxxxx Xxxxx 1,500
Xxxx Xxxx 1,610
Xxxxxx X. Xxxxxxx, Xx. 131,588
Xxxxxx Xxxxxx 2,675
Camp & Associates, Inc. 2,675
Xxxx X. Xxxxxxx 13,000
Xxxxxx X. Xxxxxxx 27,286
Xxxxxx Meena 2,000
Xxxxx X. Xxxx, Xx. 30,880
Xxxxxxx Xxxxxx 536
Xxxxx Xxxxxx 161
Xxxxxxx Xxxxxxxx 4,000
Xxxxxxx X. Xxxxxx 15,000
Xxxxxxx X. Xxxx 15,000
Xxxxxxx Xxxxxxx 5,000
Xxxxxx X. Xxxxxx 10,000
Xxxxxx X. Xxxxxxx 30,000
Xxxxx X. Xxxxx 13,220
Xxxxx X. Xxxx 5,000
Xxxxxxx Xxxxxx 500
Xxxx Xxxxxxxx 500
Xxxxxxx Xxxxxxx 500
Xxxxxxx X. Xxxxxx 10,000
Xxxxxxx Xxxxxxx 2,000
Xxxx Xxxxxxxx 3,000
Xxxxxx Xxxxxxx 3,050
Xxx Xxxxxxxx 500
Xxx Xxxxxx 4,000
---------
Total 917,040
=======
EXHIBIT A-1
FORM OF RELEASE
[for Sellers]
______________________________, having an address of _____________
-------------------------------- ("Releasor"), for and in consideration
of the receipt of certain funds from, and the execution by
Aquarion Company, a Delaware corporation, having an address
at 000 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000 (in such capacity,
"Releasee") of, a certain Escrow Agreement among Releasor, Releasee, the
Representatives (as defined therein) and Aquarion Company, as Escrow
Agent (in such capacity, the "Escrow Agent") dated as of even date
herewith (the "Escrow Agreement") (all terms not otherwise defined
herein having the meanings as defined in the Escrow Agreement), the
adequacy and sufficiency whereof is hereby acknowledged, has remised,
released, and forever discharged, and by these presents does for himself
and his heirs, executors, administrators, successors and assigns,
remise, release and forever discharge fully, completely, unconditionally
and irrevocably Releasee and its successors and assigns of and from all
of the following:
Any and all claims, actions, suits, proceedings, causes of action,
rights, interests, debts, dues, sums of money, accounts, reckoning,
bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments,
extents, executions, demands and accounts of every kind, known or
unknown, matured or contingent, present, future or otherwise in law
or equity, which against Releasee or their successors and assigns,
Releasor, ever had, now has or which he or his successors, assigns,
heirs, executors or administrators, hereafter can, shall or may
have for, upon or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date
of these presents, occurring or arising as a result of, or by and
pursuant to a certain Amended and Restated Stock Purchase Agreement
among Aquarion and certain Sellers dated as of December 7, 1990, as
amended on September 12, 1991 (the "Stock Purchase Agreement"), and
any transactions, directly or indirectly, related thereto or any
other documents in connection therewith.
Releasor hereby waives all claims, counterclaims, defenses and
rights of setoff it may have against Releasee or its successors and
assigns by reason of the Stock Purchase Agreement and any transactions,
directly or indirectly, related thereto or any other documents in
connection therewith.
In the event that Releasor or any heir, executor, administrator,
successor or assign of Releasor undertakes at any time through any legal
process to challenge the validity or enforceability of all or any part
of the Escrow Agreement or this Release of Claims, then Releasor shall
be liable to Releasee and its successors and assigns, and shall
indemnify and hold Releasee and its successors and assigns, harmless
against any and all loss, damage, liability, cost or expense, including
without limitation, actual attorneys' fees, incurred by Releasee and its
successors and assigns in defending the Escrow Agreement,
or any agreement relating to any of the foregoing, or arising by reason
of the challenge of the Escrow Agreement or this Release of Claims,
whether or not said challenge results in litigation or whether or not said
challenge is successful.
The Release of Claims shall be binding on Releasor and his heirs,
executors, administrators, successors and assigns, and shall inure to
the benefit of Releasee and its successors and assigns.
IN WITNESS WHEREOF, Releasor has set his hand this _____ day of
__________, 1995.
Witnesses:
____________________________
____________________________ _______________________________
STATE OF ___________ )
) ss.:
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this _____ day
of __________, 1995 by ____________________.
_______________________________
Commissioner of Superior Court
Notary Public
My Commission Expires:
EXHIBIT A-2
FORM OF REPRESENTATIVES RELEASE
[to be executed separately by each of Xxxxxxx and Xxxxxxx]
______________________________, having an address of _____________
_____________("Representative"), for and in consideration of the receipt
of certain funds from, and the execution by Aquarion Company, a Delaware
corporation, having an address at 000 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000-
2353 (in such capacity, "Releasee") of, a certain Escrow Agreement among
Releasor, Releasee, the Representatives (as defined therein) and
Aquarion Company, as Escrow Agent (in such capacity, the "Escrow Agent")
dated as of even date herewith (the "Escrow Agreement") (all terms not
otherwise defined herein having the meanings as defined in the Escrow
Agreement), the adequacy and sufficiency whereof is hereby acknowledged,
has remised, released, and forever discharged, and by these presents (a)
for himself and his heirs, executors, administrators, successors and
assigns, and (b) as Representatives under the Shareholders
Representative Agreement dated as of December 7, 1990 (the
Representative Agreement ) by and among the Shareholders (as defined
therein) and Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx as
Representatives, for and on behalf of each of the Shareholders (said
Representatives and all of the Shareholders being herein collectively
referred to as the "Releasors") and their respective heirs, executors,
administrators, successors and assigns, in each case Releasors do
remise, release and forever discharge fully, completely, unconditionally
and irrevocably Releasee and its successors and assigns of and from all
of the following:
Any and all claims, actions, suits, proceedings, causes of action,
rights, interests, debts, dues, sums of money, accounts, reckoning,
bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments,
extents, executions, demands and accounts of every kind, known or
unknown, matured or contingent, present, future or otherwise in law
or equity, which against Releasee or their successors and assigns,
Releasors, ever had, now has or which any of them or any of their
respective successors, assigns, heirs, executors or administrators,
hereafter can, shall or may have for, upon or by reason of any
matter, cause or thing whatsoever from the beginning of the world
to the day of the date of these presents, occurring or arising as a
result of, or by and pursuant to a certain Amended and Restated
Stock Purchase Agreement among Aquarion and certain Sellers dated
as of December 7, 1990, as amended on September 12, 1991 (the
"Stock Purchase Agreement"), and any transactions, directly or
indirectly, related thereto or any other documents in connection
therewith.
Releasors hereby waive all claims, counterclaims, defenses and
rights of setoff any of them may have against Releasee or its successors
and assigns by reason of the Stock Purchase
Agreement and any transactions, directly or indirectly, related thereto
or any other documents in connection therewith.
In the event that any of the Releasors or any heir, executor,
administrator, successor or assign of any of the Releasors undertakes at
any time through any legal process to challenge the validity or
enforceability of all or any part of the Escrow Agreement or this
Release of Claims, then Representative shall be liable to Releasee and
its successors and assigns, and shall indemnify and hold Releasee and
its successors and assigns, harmless against any and all loss, damage,
liability, cost or expense, including without limitation, actual
attorneys' fees, incurred by Releasee and its successors and assigns in
defending the Escrow Agreement, or any agreement relating to any of the
foregoing, or arising by reason of the challenge of the Escrow Agreement
or this Release of Claims, whether or not said challenge results in
litigation or whether or not said challenge is successful.
The Release of Claims shall be binding on each of the Releasors and
each of their respective heirs, executors, administrators, successors
and assigns, and shall inure to the benefit of Releasee and its
successors and assigns.
IN WITNESS WHEREOF, Representative has set his hand this _____ day
of __________, 1995.
Witnesses:
____________________________
____________________________ _______________________________
STATE OF ___________ )
) ss.:
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this _____ day
of __________, 1995 by ____________________.
_______________________________
Commissioner of Superior Court
Notary Public
My Commission Expires:
